Statute of Limitations
As stated earlier, injured workers have the burden to prove several things before they are entitled to receive workers’ compensation benefits. There are a few common defenses that insurance companies bring up, to which you need to pay special attention. One is the statute of limitations. An injury by accident claim needs to be filed with the Virginia Workers’ Compensation Commission within two years of the date of the accident. Many times, an injured worker is caught unaware because the insurance company voluntarily makes payments for two years, and after two years when their checks stop arriving, they realize that they were supposed to file a Claim Form with the Virginia Workers’ Compensation Commission and the statute of limitations has run. There is no wiggle room. You can’t keep getting benefits just because you didn’t know that you were supposed to file a claim. Also, if you’re filing for permanent partial disability benefits, it must be filed within three years from the date you were last paid workers’ compensation benefits.
Also, if you want to file a change in condition (for example: you’ve gone back to work and now a second surgery is required and you need to go back out of work), you need to file within two years from the date that compensation was last paid pursuant to an Award Order. If you’ve been voluntarily paid sporadically, this does not stop the two years from running. This is another reason why its’ very important always to get your Award orders entered for all benefits and time periods. Here is an example: you were paid pursuant to an Award Order that ended January 1, 2006 and then on January 1, 2007, your doctor took you back out of work for one year; the insurance company paid you voluntarily without an Award Order, then as of January 1, 2008, if you are taken out of work again, you would not get any lost wages because the statute of limitations ran. However, if an Award Order had been entered for the time frame between January 2007 and January 2008, you would still have until January 2010 before the two-year statute of limitations would be finished. Some of the statutes of limitation can be confusing.
The most important thing you need to remember is that every time you get workers’ compensation benefits, you need to make sure that agreements forms are sent to you by the insurance company for your signature and that they are forwarded to the Virginia Workers’ Compensation Commission for entry of an Award Order. This is the best way of protecting yourself from the pitfalls of too much time elapsing and being taken advantage of by the insurance company. If in doubt, call our office to be certain you are doing everything within the right timelines.
The employee must notify the employer of the accident within 30 days of the accident. If you fail to do this, your claim may be denied. Obviously, the ideal situation is to notify your employer immediately and in writing. Some employers have rules that injuries need to be reported within 24 hours. If you don’t make your employer’s deadline, you don’t forfeit your workers’ compensation benefits but the insurance adjuster will deny your claim and make you fight for your benefits.
Willful Misconduct—Or Insurance Companies Looking for Loopholes
If an employee is hurt due to “willful misconduct,” his claim may be lost. It makes sense but the insurance company will grab on to anything to deny a claim. If you are drunk at work and are hurt, of course your claim should be denied. But, what if you were going one mile over the speed limit or you don’t recall your speed, then you are in a car wreck and you are now paralyzed? Examples of willful misconduct would be: intoxication, incarceration, violating a statutory rule such as speeding or reckless driving, or violating a work safety rule. The law for work safety rules is that the employer has to show that the rule was reasonable, it was known to the injured worker, it was for the injured worker’s benefit, and the worker intentionally undertook the forbidden act. I’ve seen some tragic events occur to individuals under this rule. Many times, employers have safety rules but they are not followed. It can be hard to prove that nobody obeys the safety rules. My best advice is to follow all work safety rules as closely as possible, but at the same time remember that just because your employer is saying you violated a safety rule does not mean that if you fight it, you won’t win your benefits.
Insurance companies also try to deny workers’ compensation claims alleging an injured worker misrepresented something on an employment application. The law is that it must be a significant misrepresentation that they relied on and there has to be a relationship between the misrepresentation and the injury. So, for example, if you have a bad back and you failed to disclose your bad back on your application and then broke your foot at work, it would not matter. However, if you injured your back, it could bar you from receiving workers’ compensation benefits.
Insurance companies also try to set you up to “refuse” certain workers’ compensation requirements in order to deny your benefits. One example is “refusal of employment.” If your employer has found you a job that your doctor says you can do, you must take it or benefits are cut off. Failure to cooperate with your vocational rehabilitation specialist, to include refusing to meet with that person or not following up with phone calls and failure to look for light duty employment are other examples of refusal. This is a very frustrating situation for many of my clients who want control or choice over job placements. The law is that when you have been released to light duty work, you are supposed to make a good faith effort to find employment within your capabilities. However, it does not mean going back to your old job. If you’ve had the same job as a plumber for 25 years, it’s very difficult to comprehend that if your doctor says you can drive, you need to be looking for taxicab employment. It can be stressful if you’ve always been a daycare provider or you’ve always done heavy labor and the insurance company wants you at a desk job, answering the phone. Unfortunately, it is very, very important to document your employment search because this is a very common trick that is used to try to cut individual workers’ benefits off. See the appendix for job search guidelines and a chart to help you.
“Refusing medical treatment” is another pitfall. This does not occur very often but it may occur when a doctor is recommending surgery and the injured worker really does not want to have surgery. There are ways to get around this type of situation and it would be best to speak to a lawyer about how to best strategize so that you cannot be labeled as refusing medical treatment which would cause your checks and medical treatment to be cut off.
About the Author: Injured Workers Law Firm
The Injured Workers Law Firm is a Richmond, Virginia based firm solely focused on serving clients with workers' compensation claims in Virginia. If you have questions about your benefits or if you would like more information on the Virginia Workers’ Compensation system, order our book, “The Ultimate Guide to Workers’ Compensation in Virginia” , or call our office today (804) 755-7755.